#CyberFLASH: Phones are more private than houses – so shouldn’t be easier to search

Last month, the Supreme Court of Canada decided that police do not need a warrant to search the contents of your cellphone. In R v Fearon, a majority of the court decided that police can search the contents of your cellphone as long as the search is “truly incidental” to a lawful arrest and is tailored to the reason for the arrest.

This decision does not appreciate how technology has changed the privacy interests of Canadians. Smart phones have forever altered the way we use, store and relate to information. This has upended many of our intuitions about privacy. This is especially true for Millennials, who make greater use of smart phones and have a greater privacy interest in their contents.

Modern phones contain an astounding amount of private information. If a police officer searched our phones, he could access every digital conversation we’ve had since 2006. Like millions of Canadians, we use mobile financial software to track our expenses, investments and debt. Our phones contain most photographs we take and give access to every important document on our home computers through apps like Dropbox. If you use Grindr, or another LGBTQ dating app, an officer could discover your sexual orientation merely by viewing the home screen. Google automatically displays travel routes to frequently visited places, providing an officer our work address or the address of a significant other. Many apps record location information, providing a record of your movements over a period of weeks, months or years. Even if you don’t use such an app, most smartphones automatically keep location data that can be easily extracted with equipment available to the police.